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Is Post-Positivism Possible?

Published online by Cambridge University Press:  06 March 2019

Karen Petroski

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In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.

Type
Research Article
Information
German Law Journal , Volume 12 , Issue 2: Special Issue - The Many Fates of Legal Positivism , 01 February 2011 , pp. 663 - 692
Copyright
Copyright © 2011 by German Law Journal GbR 

References

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31 Some second-order accounts of positivism have explored the relationship between “external” and “internal” legal theory, and the relationship between this distinction and the necessarily partial nature of legal theory. See, e.g., Perry, supra note 29. Others have explored the contexts in which legal theory is produced. See, e.g., Lacey, supra note 5, at 947–48; Schofield, supra note 16, at 69–70, 82, 85. But the link between these two topics has been much less scrutinized.Google Scholar

32 See Perry, , supra note 13; Perry, supra note 18; Perry, supra note 29.Google Scholar

33 Perry, , supra note 13, at 311.Google Scholar

34 Id. at 347, 354.Google Scholar

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43 Many legal theorists have taken this position, but prior to MacCormick they described themselves, and would most likely have been described as, anti-positivist rather than post-positivist. See, e.g., William E. Conklin, The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition 3, 68, 304 (2002); Fueßer, supra note 8, at 119, 120; George, supra note 12, at 321, 330; Tamanaha, supra note 15, at 35–36.Google Scholar

44 See, e.g., Greenawalt, , supra note 2, at 19 (noting that “the label ‘legal positivism’ may be mainly a matter of rhetorical force, now usually negative”); Sebok, supra note 2, at 2 (noting that the “positivist” term has “in recent years … become a pejorative in modern American legal circles”); Schauer, supra note 2, at 32–35 (discussing pejorative uses of “positivist” label).Google Scholar

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46 MacCormick's use of the label may also be related to terminological bleeding from one specialty to another. The term “post-positivist” is not uncommon in work on international law and international relations, another field in which MacCormick wrote. See, e.g., International Theory: Positivism and Beyond (Steve Smith, Ken Booth & Marysia Zalewski eds., 1996); Biersteker, Thomas, Critical Reflections on Post-Positivism in International Relations, 33 Int'l Stud. Q. 263 (1989); Gontarek, Stan, International Legal Theory: Positivist, Naturalist, and Much More, 1 Int'l Legal Theory 5 (1995). In this subfield, the term is used not to refer to a position beyond or following legal positivism but in a manner borrowed from its meaning in the philosophy of science, where it refers to post-logical positivist theoretical positions. See, e.g., Ruth Groff, Critical Realism, Post-Positivism, and the Possibility of Knowledge (2004); Zammito, John H., A Nice Derangement of Epistemes: Post-positivism in the Study of Science from Quine to Latour (2004). Larry Laudan is known for having argued that these “post-positivist” positions share important assumptions with the positivism they claim to move beyond and are largely an extension of positivism rather than a true departure from it. See Larry Laudan, Beyond Positivism And Relativism: Theory, Method, And Evidence (1996).Google Scholar

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50 MacCormick, , Institutions, supra note 1, at 264. See also id. at 4 (writing that he believes that “some minimum of justice is essential” to legal validity). MacCormick also points to his incorporation of positions associated with legal theorists identified as natural law theorists as well as legal positivists. Id. at 279. But as has often been discussed, many legal positivists have moderated their position to accommodate criticisms offered by natural law theorists or non-positivists, without relinquishing their commitment to the positions described above in Section B.I.2. See, e.g., Robin Bradley Kar, Hart's Response to Exclusive Legal Positivism, 95 Geo. L.J. 393 (2007).Google Scholar

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52 See Huib M. De Jong & Werner, Wouter G., Continuity and Change in Legal Positivism, 17 L. & Phil. 233, 240, 249 (1998). To be sure, there are some ways in which MacCormick moves beyond the concerns of prior legal positivists, as outlined above. He suggests, for example, that law might not be reducible to discourse. See MacCormick, Institutions, supra note 1, at 62–73. He also suggests that judgments regarding the legal validity of norms occur on a continuum rather than being binary judgments. Id. at 161–65, 257–58. And as noted below, he draws on a wider range of theoretical material than the traditional legal positivist does. See infra note 56 and accompanying text.Google Scholar

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59 See, e.g., Krygier, , supra note 16, at 164, 167 (noting how different disciplinary commitments of analytical theorists and social scientists studying law lead them to identify different characteristics of legal systems); Lacey, supra note 5, at 950–57 (providing critique of H.L.A. Hart's respect for and disciplinary allegiance to analytic philosophy); Lewis, supra note 16, at 65, 70–71 (presenting descriptive account of parallel histories of valorization of autonomy in legal practice and legal theory); Schauer, supra note 37, at 858–69 (discussing disciplinary commitments and dimensions of twentieth-century positivism in the wake of Hart); Twining, supra note 13, at 129–30 (describing history of particularizing conclusions of post-Bentham legal theorists, and parallels between particularization in legal practice and in jurisprudence). Some work, to be sure, has rejected the thesis that the legal domain involves the kind of partiality or suspension identified by legal positivism, while acknowledging that legal theory is necessarily partial, and draws from these premises the conclusion that legal positivism in one or more of its varieties is intellectually incoherent. But this work argues that the positivist description of law is inaccurate; it does not seek to refute the idea that legal positivism is an inevitable form of legal theory in the world we inhabit. See, e.g., Goldsworthy, supra note 12, at 451–52 (arguing that the only plausible legal position from the “internal point of view” is a natural law position); Perry, supra note 13, at 347 (arguing that methodological positivism is inconsistent with the normativity of its descriptive object, law); Postema, supra note 8, at 165–66 (arguing that history of legal philosophy is a history of attempts to reconcile irreconcilable theses regarding legal normativity and social existence of legal institutions); Waldron, supra note 9, at 426, 432–33 (discussing “asymmetry” between legal theory as grasped by actors within the legal system from the internal point of view and as grasped by academic theorists).Google Scholar

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101 In the Fragment on Government, for example, Bentham stresses the need to acknowledge higher-order norms or reasons when he criticizes Blackstone for excessive focus on the law-making power of the government (“the right of Government to make Laws”) to the neglect of the rules governing and restricting that power (“the duty of the Government to make Laws” and “the British Constitution”). See Jeremy Bentham, A Fragment on Government 6–7 (1776); id. at 53–55 (discussing sovereign's subjection to law). See also Schofield, supra note 16, at 59–60; Twining, supra note 13, at 121.Google Scholar

102 Hart, , supra note 27, at 18–25, 91–99.Google Scholar

103 Austin, John, The Province of Jurisprudence Determined 257–58 (1863) (discussing constitutional “principles or maxims which the sovereign habitually observes,” which it “is bound or constrained to observe,” and which are known to those who might apply (nonlegal) sanctions to the sovereign in the event of its failure to observe these principles).Google Scholar

104 Conklin, , supra note 43, at 143–44.Google Scholar

105 See Hart, , supra note 2, at 614–15, 620.Google Scholar

106 Hart, , supra note 27, at 79.Google Scholar

107 See, e.g., Raz, , supra note 25, at 35–48, 141–48, 170–77.Google Scholar

108 See, e.g., MacCormick, , Institutions, supra note 1, at 292–93 (discussing law, following Karl Popper's terminology, as a “World III” “thought-object”). See also Raz, Between, supra note 29, at 265, 269.Google Scholar

109 Bix, , supra note 13, at 29.Google Scholar

110 Thus, John Finnis self-identifies and is identified by others as critical of legal positivism, yet he embraces a perspective on the nature of law similar in many ways to that described above. See Finnis, supra note 22. See also Bix, supra note 9, at 1613, 1624.Google Scholar

111 See, e.g., Coleman, , supra note 10, at 145–46; Soper, supra note 12, at 507–08, 512. Compare Dyzenhaus, supra note 8, at 712, 716 (noting that a “Dworkinian” judge would not be a legal positivist) with Leiter, supra note 15, at 27 (noting that Dworkin might be considered an applied positivist seeking to describe adjudicative process), Perry, supra note 13, at 317 (noting that Dworkin might be classed as a methodological positivist).Google Scholar

112 I am not the first to make this observation, but I hope in this section to suggest some implications that have not been noted before. For previous characterizations of particular adjudicators and judicial rhetoric as examples of legal positivism in practice, see, for example, G. Todd Butler, A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 Holy Cross J.L. & Pub. Pol'y 47, 48, 59 (2008) (concluding that Scalia is a positivist because his opinions betray his adherence to the social-facts thesis and the separation thesis, identified by Butler as the “two fundamental tenets” “share[d]” by “all legal positivists”); Beau James Brock, Mr. Justice Antonin Scalia: A Renaissance of Positivism and Predictability in Constitutional Adjudication, 51 La. L. Rev. 623 (1991); Allen, Anita J., Autonomy's Magic Wand: Abortion and Constitutional Interpretation, 72 B.U. L. Rev. 683, 693–94 (1992) (describing both Justice Scalia and Justice Thomas as positivists); George Kannar, The Constitutional Catechism of Antonin Scalia, 99 Yale L.J. 1297, 1307, 1310, 1308, 1339 (1990) (referring to Scalia as positivist).Google Scholar

113 See, e.g., Wetlaufer, Gerald B., Rhetoric and its Denial in Legal Discourse, 76 Va. L. Rev. 1545, 1555 (1990).Google Scholar

114 Brock, , supra note 112, at 632.Google Scholar

115 See sources cited supra note 112.Google Scholar

116 See Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law 25 (1997); Scalia, Antonin, Morality, Pragmatism, and the Legal Order, 9 Harv. J.L. & Pub. Pol'y 123, 125 (1986) (“I have never been able to isolate obligations of justice, except by defining them as those obligations that the law imposes.”). Similarly, Justice Scalia's dictum that “[t]here are times when even a bad rule is better than no rule at all” can be taken as an articulation of the separability thesis. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989) [hereinafter Scalia, The Rule of Law].Google Scholar

117 See Zlotnick, David M., Jusice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 Emory L.J. 1377, 1427–28 (1999) (arguing that Justice Scalia is more accurately characterized as a politician than as a judge); Stephen A. Newman, Political Advocacy on the Supreme Court: The Damaging Rhetoric of Antonin Scalia, 51 N. Y. L. Sch. L. Rev. 907 (2006).Google Scholar

118 E.g., Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990) (“The resolutions we have reached … can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations … but … that has been the character of our jurisprudence in this field.”).Google Scholar

119 E.g., Penry v. Lynaugh, 492 U.S. 302, 359 (1989) (Scalia, J., concurring in part and dissenting in part) (“It is an unguided, emotional ‘moral response’ [in juries] that the [majority opinion] demands be allowed—an outpouring of personal reaction …, an unfocused sympathy. Not only have we never before said the Constitution requires this, but [in prior decisions we have] sought to eliminate precisely the unpredictability it produces.”). Commentators have noted that this disavowal is belied by Justice Scalia's use of colorful language to characterize views with which he disagrees. See generally Newman, supra note 117.Google Scholar

120 In line with H.L.A. Hart, Justice Scalia has argued that the exclusion of certain considerations from the domain of legitimate legal reasons advances certainty and predictability. Compare Scalia, The Rule of Law, supra note 116, with Hart, supra note 27, at 42, 252 (arguing that a benefit of a rule of recognition is its enhancement of certainty and predictability).Google Scholar

121 Because we can only detect the occupation of a legal positivist position through statements like those made by Justice Scalia, the difference between occupying the institutional position associated with the generation of legal positivist discourse and the use of positivist rhetoric by one functioning within another institution may not be all that significant. Cf. Collins & Evans, supra note 39, at 86.Google Scholar

122 Dworkin, Ronald, Law's Empire 90 (1986) (“Jurisprudence is the general part of adjudication, silent prologue to every decision at law.”).Google Scholar

123 Collins, & Evans, , supra note 39, at 14.Google Scholar

124 Id. at 15.Google Scholar

125 Id. at 70–76.Google Scholar

126 Id. at 52–54, 60–63.Google Scholar

127 As Collins and Evans argue, “distance lends enchantment,” that is, “the more distant one is from the locus of the creation of knowledge in space and time the more certain will the knowledge appear to be.” Id. at 20.Google Scholar

128 See generally Kannar, , supra note 112; Zlotnick, supra note 117. See also Matthew Kramer's argument that legal officials often act for prudential rather than moral reasons, Kramer, supra note 4, at 64–77, and Jamal Greene's argument, not limited to Justice Scalia, about the reasons for the use of originalist rhetoric in judicial and popular discourse, Jamal Greene, Selling Originalism, 97 Geo. L.J. 657 (2009).Google Scholar

129 See supra notes 116 & 117.Google Scholar

130 For an overview of work taking this type of approach, see Mark Hall & Ron Wright, Systematic Content Analysis of Judicial Opinions, 96 Cal. L. Rev. 63 (2006).Google Scholar

131 This is similar to, but not quite the same as, the question of the descriptive accuracy of the positivist account of law. See, e.g., Bix, supra note 13, at 21 (noting that debate between Dworkin and Raz should be ultimately empirically resolvable); Benjamin C. Zipursky, The Model of Social Facts, in The Autonomy of Law, supra note 4, at 219, 243.Google Scholar

132 See, e.g., Brudney, James G. & Ditslear, Corey, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1 (2005); Cross, Frank B., The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007); Czarnezki, Jason J. & Ford, William K., The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841 (2006); Gates, John B. & Phelps, Glenn A., Intentionalism in Constitutional Opinions, 49:2 Pol. Research Q. 245 (June 1996); Howard, Robert M. & Segal, Jeffrey A., An Original Look at Originalism, 36 Law & Soc'y Rev. 113 (2002); Schacter, Jane S., The Confounding Common Law Originalism in Recent Supreme Court Statutory Intepretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998); Zeppos, Nicholas S., The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992).Google Scholar

133 Compare the assumptions of Dennis Patterson, Law and Truth (2000), with Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).Google Scholar

134 See, e.g., Moore, , supra note 15, at 321–24; Philip Roberts, Observations on Method in Legal Theory and Linguistics, in Positivism Today, supra note 4, at 77, 81–92.Google Scholar

135 Cf. Brian Leiter's call for a “naturalized jurisprudence” in Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 266 (1997).Google Scholar

136 See, e.g., Caldeira, Gregory A., Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 Am. Pol. Sci. Rev. 1209 (1986); Caldeira, Gregory A. & Gibson, James L., The Etiology of Public Support for the Supreme Court, 35 Am. J. Pol. Sci. 635 (1992); Casey, Gregory, Popular Perceptions of Supreme Court Rulings, 4 Am. Politics Q. 3 (1976); Durr, Robert H., Andrew D. Martin, & Christina Wohlbrecht, Ideological Divergence and Public Support for the Supreme Court, 44 Am. J. Pol. Sci. 768 (2000); Hoekstra, Valerie J., The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89 (2000); Jaros, Dean & Roper, Robert, The U.S. Supreme Court: Myth, Diffuse Support, Specific Support, and Legitimacy, 23 Am. Politics Q. 85 (1980); Johnson, Timothy R. & Martin, Andrew D., The Public's Conditional Response to Supreme Court Decisions, 92 Am. Pol. Sci. Rev. 299 (1998); Kessel, John, Public Perceptions of the Supreme Court, 10 Midwest J. Pol. Sci. 167 (1966); John M. Scheb II & Lyons, William, Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors that Influence Supreme Court Decisions, 23 Pol. Behavior 181 (2001).Google Scholar

137 See, e.g., Joseph, Raz, The Authority of Law: Essays on Law and Morality (1983).Google Scholar

138 See, e.g., Strauss, David A., On the Origin of Rules (with Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules, 75 U. Chi. L. Rev. 997, 998–99, 1002 (2008); Zlotnick, , supra note 117, at 1382– 87.Google Scholar

139 This is a broader articulation of the point underlying Hart's practice conception of the rule of recognition. The issue is explored from different perspectives in, for example, Adler, supra note 10; Lewis, supra note 16; Andrei Marmor, Legal Conventionalism, in Hart's Postscript, supra note 4, at 193, 209–10.Google Scholar

140 See, e.g., Becher, , supra note 39, at 38, 44; Glock, supra note 71, at 205, 223–24; Kemp, supra note 65 (noting that the evaluation of interdisciplinary work is hampered by use of the same terms in different disciplines in different senses, incomprehensible to non-specialists).Google Scholar

141 See supra notes 116, 138 and accompanying text.Google Scholar

142 See Green, Leslie, The Concept of Law Revisited, 94 Mich. L. Rev. 1687, 1698–700 (1995) (review of Hart, supra note 27) (noting that Hart did not exalt secondary rules or formal legal systems as a better form of law, but only described them as functionally necessary to sustain certain forms of social life); Green, supra note 19, at 1056–58 (noting that Hart described law as, by nature, prone to decay and vice, chiefly the vice of the alienation of law from its subjects); Waldron, supra note 13, at 175, 179, 181 (noting that Hart's account of law implied that the emergence of a legal system allows the more efficient perpetuation of injustice, and that the development and elaboration of secondary rules tends to make the population increasingly less familiar with primary rules). In The Concept of Law, Hart acknowledged that the general public usually does not have access to or subscribe to the rule of recognition. Hart, supra note 27, at 59–60, 110–11.Google Scholar

143 Cf. Lewis, , supra note 16, at 66. See also supra notes 69–73, 127–128 and accompanying text.Google Scholar

144 See, e.g., MacCormick, , supra note 13; Liam Murphy, The Political Question of The Concept of Law, in Hart's Postscript, supra note 4, at 371; Perry, supra note 13; Waldron, supra note 9.Google Scholar

145 See, e.g., Abbott, System of Professions, supra note 39, at 52–57, 79–84; Cownie, supra note 72, at 58–69; Deborah Jones Merritt, Research and Teaching on Law Faculties: An Empirical Exploration, 73 Chi.-Kent L. Rev. 765 (1998).Google Scholar